Picture by Letitia Pupe Mtonga
By Chiluba Kabinga and Ngela Munalula
INTRODUCTION
In a statement made by the Deputy Chief Whip of the National Assembly Honourable Tutwa Ngulube M.P to Zambia National Broadcasting Corparation on 14th June, 2020 the public was informed that it was not the idea of government for inmates to start voting, but that of the Constitutional Court that ordered the government and the Electoral Commission of Zambia to allow inmates to vote.[1] The operationalisation of the right to vote for persons in lawful custody has sparked debate in the country from various stakeholders with concerns ranging from laws that disenfranchise inmates from voting, to the modalities that will be put in place to ensure they vote.
One of the most critical ways that individuals can influence government decision-making is through voting. Voting is a formal expression of preference for a candidate for office or for a proposed resolution of an issue.[2] The right to vote is universally recognised as a fundamental human right. Hence, persons under lawful custody and those whose freedom of movement is restricted under any written law have the right to enjoy universal suffrage.
This article discusses laws that govern the right to vote by persons in lawful custody. It further discusses the process on the operationalisation of prisoners’ right to vote and shares the recommendations that were made by ZLDC.
ARE PERSONS IN LAWFUL CUSTODY ELIGIBLE TO VOTE?
With regards to eligibility to vote, Article 46 of the Constitution does not exclude any category of persons including those in lawful custody from exercising their right to vote.
On the other hand, the Electoral Process Act disqualifies persons in lawful custody and those under a sentence of death imposed by a competent court from being registered as voters.[3]
In 2016, Godfrey Malembeka, the Executive Director of the Prisons Care and Counselling Association (PRISCCA) challenged the status quo in court, where he sought, among other things, a declaration that remandees and convicts who have appealed their convictions be allowed to vote. The Constitutional Court declared that persons in lawful custody and those whose freedom of movement is restricted under a written law are entitled to vote in future elections. It further held that the provisions of the Electoral Process Act that provide for the disenfranchisement of persons in custody were unconstitutional and void[4].
THE LAW ON THE RIGHT TO VOTE BY PERSONS IN LAWFUL CUSTODY
The law that govern voting in Zambia include the Constitution of Zambia, the Electoral Process Act and the Electoral Commission of Zambia Act. The three pieces of legislation are briefly discussed below.
1.The Constitution of Zambia
The Constitution is the supreme law of the land. This means that any piece of legislation has to be in line with what is stipulated in the Constitution. The Constitution states that all citizens should freely participate in the affairs of the country to promote democracy and good governance. The Preamble of the Constitution “Confirm the equal worth of women and men and their right to freely participate in, determine and build a sustainable political, legal, economic and social order”.
With regards to exercising the right to vote, it provides that-
“45. (1) the electoral systems provided for in Article 47 for the election of the president, Member of Parliament or Councillor shall ensure-
(a) that citizens are free to exercise their political rights;
(b) Universal adult suffrage based on the equality of a vote;
(c) fair representation of the various interest groups in society;…..”
2.The Electoral Process Act
The Electoral Process Act provides among others for a comprehensive process for a general election; the conduct of elections by the electoral Commission of Zambia and empower the Commission to make regulations in matters relating to elections; the registration of voters and the keeping of voters registers; for the role of presiding officers, election officers and conflict management officers; for election petitions and the hearing and determination of applications relating to a general election; for the accreditation and roles of observers and monitors; and provide for voter education.
The Act prescribes among others the procedures for nominations of elections; the procedure for voting during an election; the electoral code of conduct.
Further, the Act criminalises corrupt practices and other illegal practices related to elections and provide for penalties in connection with an election; and provide for matters connected with, or incidental to, the foregoing.[5]
With regards to exercising the right to vote, the Electoral Process Act provides that-
“9(1) The Commission shall not register a person as a voter if that person-
(e) is disqualified from voting under section forty-seven;
(f) is under a sentence of death imposed by a competent court, or a sentence of imprisonment imposed by a court or substituted by a competent authority for some other sentence imposed by that court” ,
and,
“47. A person shall not be entitled to vote at an election if, at the date of the election, that person is in lawful custody or the person’s freedom of movement is restricted under any written law.”
THE ELECTORAL COMMISSION OF ZAMBIA ACT
The Electoral Commission of Zambia Act provides for the membership, functions, operations and financial management of the Electoral Commission of Zambia; repeal and replace the Electoral Commission Act, 1996; and provide for matters connected with, or incidental to, the foregoing[6]
With regards to exercise the right to vote, the functions of the Electoral Commission of Zambia are to:-
“(a) apply the principles in the electoral system and process under the Electoral Process Act, 2016;
(b) conduct the registration of voters for the purposes of an election; (c) prepare, publicise and maintain a register of voters;
(d) determine the names and boundaries of constituencies and wards;
(e) resolve disputes that are of an administrative nature, which may arise from the organisation, administration or conduct of an election; (f) conduct education and information programmes to promote public awareness of electoral matters;
(g) provide information and advice to State organs on electoral matters;
(h) conduct and promote research into electoral matters and other matters that relate to its functions; and
(i) establish and maintain liaison and cooperation with political parties”. [7]
An analysis of the three pieces of legislation aforementioned shows that some provisions of the Electoral Process Act do not conform to the relevant provisions of the Constitution as interpreted by the Constitutional Court in Godfrey Malembeka v. the Attorney General and the Electoral Commission of Zambia. Therefore, such provisions are null and void.
THE CHANGE FOLLOWING THE CONSTITUTIONAL COURT JUDGEMENT.
Following the Constitutional Court judgement[8], in 2018, the Zambia Law Development Commission (ZLDC) and the Zambia Correctional Service (ZCS) were requested by the Minister of Home Affairs to facilitate the operationalisation of the Prisoner’s Right to Vote. In 2019, the ZLDC undertook a desk study and compiled a position paper on the operationalisation of prisoners’ right to vote which was subsequently handed over to the Minister of home Affairs, ECZ and ZCS in May, 2020. The Commission further shared the findings of its position paper on prisoners’ right to vote with other stakeholders and the general public in a dissemination meeting in July, 2020.
Based on the ZLDC findings and recommendations contained in the position paper, the Electoral Commission of Zambia, in January, 2020 appointed a Technical Committee to lead the operationalisation of the right to vote by persons in lawful custody. The ZLDC was appointed to this Committee and to lead the development of appropriate legislation to facilitate voting by persons in lawful custody.
As part of the process of reviewing the existing legal framework and developing appropriate legislation the Technical Committee led by the Zambia Law Development Commission undertook an inspection and mapping exercise of correctional centres and correctional farms in Zambia and further held a virtual comparative study to review the legal and administrative frameworks in selected African countries[9], which informed proposed amendments to be made to the law.
Further, the ZLDC working together with the Electoral Commission of Zambia (ECZ) and the Technical Committee held stakeholders consultative meetings on the operationalisation of the right to vote for persons in lawful custody. Meeting participants were drawn from political parties, church mother bodies, academic institutions, the media, defence and security wings, the Judiciary, and the Law Association of Zambia among others.
The objectives of the consultative meetings were to: Share the contents of the preliminary report and draft Bills developed by ZLDC working in collaboration with ECZ and the Technical Committee following the mapping exercise, virtual comparative studies, the legislative audit, and the drafting exercise; and Solicit for input, observations, and recommendations from the stakeholders on the outputs of the processes conducted by ZLDC and the Technical Committee.
Key Stakeholders submissions were on:
- Allowing political parties physical access to prisons and correctional centres to conduct physical campaigns.
- The need for the Electoral Commission of Zambia to sensitize people on registration and voting.
- The need to assist inmates with the acquisition of National Registration Cards to enable them to register as voters.
- The proposed Bills not to provide for voting by persons in police custody.
- The Electoral Commission of Zambia to consider upholding the secrecy of the ballot of inmates and officers by also allowing the surrounding communities to register and vote at centres established at the facilities.
- The need to allow even the surrounding communities to vote from the correctional facility polling stations to avoid victimisation of inmates.
- The need to amend section 29(4) of the Electoral Process Act which prohibits campaigns in prisons and correctional centres as it limits access to information by inmates, given that inmates have inadequate access to televisions and radios.
Zambia Law Development Commission’s specific findings and recommendations
Based on the desk review, observational visits of correctional facilities, Inspection Visit and Mapping of Correctional Facilities, case studies and stakeholder consultations, the Commission made recommendations on the operationalisation of right to vote by persons in lawful custody as follows:
i.Section 9 (1) (e) (f) and 47 of the Electoral Process Act
Sections 9 (1) (e) (f) and 47 of the Electoral Process Act preclude persons in lawful custody from voting. In the case of Godfrey Malembeka v. the Attorney General and the Electoral Commission of Zambia[10], the Constitutional Court found that the sections contravene article 46 of the Constitution as amended. The Commission recommended that the Electoral Process Act should be amended by the repeal of section 9 (1) (e) (f) and 47 in order to give effect to the Constitutional Court judgement that the sections contravened article 46 of the Constitution as amended.
ii. Definition section
The definition section of the Electoral Process Act needed to be enhanced in order to provide definitions of terms introduced in the draft amendment Bill. These terms include “electoral process”, “legally disqualified”, “prisoner”, “prison officer” “State Institutions” and “Officer-in Charge”. The Commission recommended for the insertion of the aforementionednew definitions in the appropriate places in alphabetical order.
iii.National Registration Card- Section 9 (1)(a)
Section 9 (1) (a) of the Electoral Process Act did not specify the colour of the National Registration Card. Stakeholders submitted that Zambian citizens have green National Registration Cards whilst foreign nationals are provided with pink cards, and therefore it was necessary to state that, for the purpose of registration as a voter, one needed to have a “green” National Registration Card. The Commission recommended that section 9 should be amended by specifying that the National Registration Card should be green to ensure that only Zambian citizens are registered as voters.
iv. Establishment of polling stations
Section 24 (1) of the Electoral Process Act provides that the Commission shall establish one polling station in each polling district. In order to establish polling stations at prisons and correctional centres, the Commission may have to establish multiple polling stations within a polling district. The Commission recommended that section 24 (1) of the Electoral Process Act amended to the effect that the Commission may establish multiple polling stations within a polling district.
v.Establishment of polling stations within a prison and correctional centre
In order to facilitate voting by inmates, there may be need for the Electoral Commission of Zambia to establish polling stations within prisons or correctional centres. Further, during the mapping exercise carried out at prisons and correctional centres, stakeholders submitted that there would be need to allow the surrounding communities to vote from the polling stations established at the prisons or correctional centres in order to ensure the secrecy of the ballot by inmates and prison officers.
The Commission recommended that a new section should be inserted in the Act to provide that where the Commission establishes a polling station in a prison or correctional centre, that polling station shall be used by prisoners, prison officers and members of the public.
vi.Access to polling stations established in a prison and correctional centre
Being security installations, it was found that access to prisons and correctional centres was restricted. However, there was need to facilitate access to the facilities by the Commission for the purpose of conducting electoral processes; candidates or political party representatives for the purpose of distributing campaign material in the prescribed manner; accredited polling agents, observers, monitors and media for the purpose of observing or monitoring an election; and members of the public for the purpose of voting.
The Commission recommended that there should be an insertion of a new section in the Electoral Process Act to facilitate access to prisons or correctional centres by the Electoral Commission of Zambia for the purpose of conducting electoral processes; candidates or political party representatives for the purpose of distributing campaign material in the prescribed manner; accredited polling agents, observers, monitors and media for the purpose of observing or monitoring an election; and members of the public for the purpose of voting.
vii. Electoral Campaigns in Prisons and Correctional Centres
The words “public entity” under Section 29 (1) of the Electoral Process Act were not defined in the interpretation section of the Electoral Process Act. However, the equivalent entity in the Constitution is “state institution”. Further, subsection (2) and (3) refer to “candidates and political parties” meaning that the provisions do not apply to independent candidates.
Regarding electoral campaigns by candidates and political parties, during the mapping exercise carried out in prisons and correctional centres, it was found that the majority of respondents submitted against physical campaigns in the facilities as this may cause disciplinary issues and would undermine security. It was also the standard practice for security wings to disallow campaigns on their premises. In the comparative study it was found that Lesotho and South Africa do not permit political campaigns in the facilities.
The Commission recommended that section 29 (1) of the Act should be amended by replacing the words “public entity” with “State institution”. Subsection (2) and (3) should be amended by replacing the words “candidates and political parties” with “candidates or political parties” meaning that the provisions do not apply to independent candidates.
It was further recommended that section 29 be amended by the insertion of a new subsection prohibiting physical campaigns in prisons and correctional centres.
viii.Authority of the Commission to make Regulations
Section 125 (2) of the Electoral Process Act did not provide for the Electoral Commission of Zambia Commission to make Regulations relating to electoral processes at prisons and correctional centres. The Commission recommended that section 125(2) of the Electoral Process Act should be amended to provide for the Commission to make regulations relating to electoral processes at prisons and correctional centres.
ix.Political campaigns in prisons and correctional facilities, and access to information by inmates
Based on the findings of the mapping exercise and the comparative study which supported disallowing physical campaigns in prisons and correctional centres, it was further found that there was need to address the concern of stakeholders regarding the need to ensure that inmates have access to information in order to make informed voting decisions.
The Commission recommended that in order to ensure that inmates have access to information in order to make informed voting decisions, Regulations should developed to govern campaigns in prisons and corrections centres. The Regulations should provide that only paper-based print material and recorded messages would be admitted into prisons and correctional centres. A candidate or political party representative shall submit campaign material for inspection by the officer in-charge. The officer in-charge of a prison or correctional centre should then, in the presence of a candidate or representative of a candidate or political party, deposit the campaign materials in a library or designated place in a prison or correctional centre where documents can be accessed by prisoners.
x.Access to Prisons and Correctional Centres by the Electoral Commission of Zambia
The Electoral Commission of Zambia will require access to prisons and correctional centres in order to carry out electoral processes. However, being a security installation, access to these facilities is restricted.
It was found that in the Human Rights Commission Act[11], access to prisons and correctional centres by the Human Rights Commission is facilitated by the following provision:
- The functions of the Commission shall be to-
(d) visit prisons and places of detention or related facilities with a view to assessing and inspecting conditions of the persons held in such places and make recommendations to redress existing problems;
The Commission recommended that the Electoral Commission of Zambia Act should be amended by the addition of the following as a function of the Electoral Commission of Zambia-
“have access to prisons and correctional centres for purposes of conducting electoral processes.”
xi.Prohibition of Campaigns in facilities by Inmates
During the stakeholder consultative process, some stakeholders submitted that inmates establishing political party branches or conducting political campaigns would compromise security at prisons and correctional centres. The Commission recommended that the Prisons Act should be amended by the introduction of the offences of ‘establishing political party branches’ and ‘conducting political campaigns’ as minor prison offences by inmates.
xii.Definition of Lawful Custody
The words ‘lawful custody which were used in the Constitutional Court judgement in the Case of Godfrey Malembeka v. Attorney General and the Electoral Commission of Zambia, have not been defined in any Act of Parliament.
The Commission recommended that there was no need to define the phrase ‘lawful custody’ in the amendment Bill as the phrase was not used in the text. The repeal of section 9(1) (e) (f) and section 47 of the Electoral Process Act already allows voting by persons in lawful custody including police cells. The reason why the Bills make specific reference to prisons and correctional centres is because it was thought that because of the peculiar nature of these facilities, there was need to have provisions that would take into consideration issues such as security and access. Further, inserting provisions in the law to specifically provide for voting by persons in police cells would present administrative challenges.
CONCLUSION
An analysis of the three pieces of legislation indicate that the Electoral Process Act is in conflict with the Constitution. While the Constitution has since been amended and no longer supports disenfranchisement, the provisions in the Electoral Process Act remain the same hence the need for the review of the electoral Process Act so that it conforms to the relevant provisions of the Constitution. Persons under lawful custody or those whose freedom of movement is restricted under any written law are as eligible to vote as any other citizen. It is therefore necessary to not only have laws that acknowledge this right but further provide modalities that ensure persons under lawful custody exercise their right to vote.
With this regard, The Zambia Law Development Commission handed over the final report on the ‘Operationalisation of the Right to Vote by Persons in Lawful Custody’ and the accompanying proposed draft Bills to the Electoral Commission of Zambia on 23rd February, 2021 for onward transmission to the Ministry of Justice.
A copy of the full report can be accessed from the ZLDC website: https://www.zambialawdevelopment.org/download/report-on-operationalisation-of-the-right-to-vote-for-persons-in-lawful-custody/
FOOT NOTES
[1] https://www.lusakatimes.com/2020/06/14/its-the-constitutional-court-that-ordered-government-and-ecz-to-allow-prisoners-to-vote/
[2] https://hrlibrary.umn.edu/edumat/studyguides/votingrights.html
[3] Section 9 (1)(e)(f) and section 47
[4] Godfrey Malembeka v. Attorney General and Electoral Commission of Zambia, Selected Judgment No. 34 of 2017
[5] The Electoral Process Act No. 35 of 2016
[6] The Electoral Commission of Zambia Act No. 5 of 2019
[7] Section 4 of the Electoral Commission of Zambia Act
[8] Godfrey Malembeka v. Attorney General and Electoral Commission of Zambia, Selected Judgment No. 34 of 2017
[9] Kenya, Lesotho, South Africa and Namibia
[10] Select Judgment No. 34 of 2017
[11] Chapter 48 of the Laws of Zambia